Shenali D Waduge

What started out as the world’s indignation against Sri Lanka for the events that took place during the last three months of the war has changed leaps and bounds with each successive resolution being passed by same camps of nation. With the obvious lack of any credible proof to nail Sri Lanka the next option has been to include items that could easily have been dealt with at the Universal Periodic Review. The Resolutions passed since 2009 have had nothing to do with the war, the last phase of the war or even cared about the victims. But the architects of the resolutions have found common ground in their hunger to avenge those that eliminated the LTTE. Like it or not, none of the Resolutions can bring back to life either the LTTE or its Leader, Velu Prabarakan. He is very much a dead man and the people of Sri Lanka are thankful he is no more even if a handful of others are angry he is dead. In the present context what is important is to highlight that the UNHRC head before bidding adieu has cunningly included into the terms of reference for the investigation a period that was not included in the mandate. The Resolution was to cover the period under LLRC investigation. This period was 2002 to 2009. Why has the UNHRC Resolution put self-appointed itself to investigate from 2002 to 2011? The GOSL instead of wasting money and time lobbying useless groups need to immediately make objections to this even if it is not cooperating.   

 The OHCHR investigation on Sri Lanka quotes the Resolution :

 In its resolution A/HRC/25/1 adopted in March 2014 on Promoting reconciliation, accountability and human rights in Sri Lanka”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders”.

 http://www.ohchr.org/EN/HRBodies/HRC/Pages/OISL.aspx

 Note: The OHCHR Resolution was clear that it was to cover

1. Both parties (LTTE and Sri Lankan Government)
2. Period covered by the LLRC (2002 to 2009)

 This clearly establishes the need for the investigation to ensure it is covering both parties (LTTE and GOSL) and to also ensure it covers the period that LLRC investigated 2002 to 2009.

 Does Navi Pillay and OHCHR think that we are fools to accept upto 2011 just because the LLRC handed over their report in 2011 and that gives Navi Pillay and her office to go beyond her mandate and put the timeframe to 2011?

 The OHCHR has also been cunning enough to add The OISL will also take into consideration any contextual and other relevant information that may fall outside this timeframe which may provide a better understanding of events or which may be pertinent regarding continuing human rights violations.”

 This raises the question what does ‘other relevant information that may fall outside this timeframe’ have to do with the LLRC period covered, the crimes by both parties and/or the last phase of the war?

 Given that the OHCHR is investigating FOR THE FIRST TIME a country where a conflict has ended (the first country in the world to eliminate terrorists) why is it investigating 1/3 of the entire conflict ONLY?

 The OHCHR website includes the timeframe of the investigation which reads as thus:

The period under investigation is that covered by the LLRC, that is, from 21 February 2002 until 15 November 2011, when it presented its report to the President of Sri Lanka”

 Note: (If it is the period covered by the LLRC surely it is the period that the LLRC investigated. That period was 21 February 2002 to 19 May 2009)

 What is that mandate. The LLRC mandate as per its website declares:

www.llrc.lk

To inquire and report on the following matters that may have taken place during the period between 21st February, 2002 and 19th May, 2009, namely;

• The facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21^st February, 2002 and the sequence of events that followed thereafter up to the 19^th of May, 2009.
• Whether any person, group or institution directly or indirectly bear responsibility in this regard
• The lessons we would learn from those events and their attendant concern, in order to ensure that there will be no recurrence;
• The methodology whereby restitution to any person affected by those events or their dependants or their heirs, can be affected;
• The institutional administrative and legislative measured which need to be taken in order or prevent any recurrence of such concerns in the future, and to promote further national unity and the reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the Warrant.

 The Sri Lankan Governments response to the 2014 UNHRC Resolution is also noteworthy.

 SRI LANKA ACCUSES UNHRC OF VIOLATING HRC RESOLUTION

• “The draft resolution in its key Operative Paragraph vests the Office of the High Commissioner for Human Rights with an investigative mandate in violation of the HRC resolution 60/251 and the IB package.”

SRI LANKA SAYS UNHRC DOES NOT HAVE A MANDATE TO CARRY OUT AN INVESTIGATION OR RESOURCES:

• In addition to not having the mandate to conduct an investigation, the OHCHR also does not have the capacity or the resources to do so.”

SRI LANKA OBJECTS TO LACK OF CLARITY AND USE OF AMBIGUOUS LANGUAGE:

• Operative Paragraph also contains lack of clarity in reference to ‘relevant experts’, thus deceptively opening the door to third party elements in the guise of an investigation by the OHCHR. The reference to an international investigation mechanism is clear though crafted in ambiguous language which could be open to interpretation”

SRI LANKA ALSO HIGHLIGHTS INCONSISTENCIES & CONTRADICTIONS

• Additionally, this Operative Paragraph which requests the OHCHR to conduct an independent investigation is mutually inconsistent with Operative Paragraph 2 which calls upon the Government of Sri Lanka to conduct an independent and credible investigation into alleged violations.”

 SRI LANKA’S COMMENTS ON THE PERIOD TO BE COVERED UNDER THE UNHRC RESOLUTION (THIS INFORMATION IS IMPORTANT BECAUSE IT RECONFIRMS THE PERIOD TO BE COVERED)

• “By a deliberate failure to specify a time period in Operative Paragraph 10 (b), the draft resolution may confine its ambit between 2002 and 2009, by adopting a narrower interpretation of the period covered by the LLRC, thus completely excluding the atrocities and violations of international human rights and international humanitarian law committed by the LTTE prior to 2002”.

 SRI LANKA ALSO POINTED OUT THE DANGERS OF THE PRECEDENTS BEING SET BY THE UNHRC AND WARNS MEMBER STATES

• “This violation of established methods of work of the Council, as well as the deliberate lack of clarity of language in key Operative Paragraphs set a dangerous precedent with wider relevance to all member and observer states of this Council. If the Council is to maintain its credibility, it is incumbent upon all members to take note of such procedural irregularities and halt their continuation through the clear rejection of resolutions such as this”.

What is clear then is that the Resolution passed indicated that the Resolution was to cover the period covered by the LLRC. The LLRC period covered 2002 to 2009 and NOT 2011. Just because the LLRC handed over the report in 2011 it does not give Navi Pillay the right to childishly play around with numbers and craftily extend the investigating time period.

No sooner the Resolution passed the media highlighted the period of investigation to cover 2002 to 2009. Any search of mainstream media news on the Resolution will indicate this period.

To further highlight this period and strengthen the argument against Navi Pillay for abusing her power and mandate, we give the statement by US Ambassador Michelle Sisson herself:

There have been many questions about why the time frame of the investigation was limited to this period. It is not because the international community only cares about what happened between 2002 and 2009. In fact, an independent and credible investigation into all actions, by all parties, for the entire period of the conflict would be good for Sri Lanka, US Ambassador to Sri Lanka, Michele J. Sison said addressing to the Foreign Correspondents Association in Colombo.

Ambassador Sison’s Remarks to the Foreign Correspondents Association April 3, 2014

http://www.dailymirror.lk/top-story/45462-probe-on-the-entire-period-will-be-good-for-sl-us.html

 Obviously the mischief on the part of Navi Pillay and her investigating team is because she or her UNHRC does not have anything to hold against the Sri Lankan Government on the last phase of the war. Given that the conflict has been determined as an internal armed conflict it strengthens Sri Lanka’s case further.

 Nevertheless, what is important is that there is an official objection to exceeding the mandated time frame by including years that were not approved by the UNHRC voting members in March 2014. Navi Pillay and her office has no right to add years or remove years or add other items that were not approved by the Members that voted for the Resolution.

The Investigation inspite of flaws, contradictions and discrepancies must however remain confined from 21 February 2002 to 19 May 2009….NOT EXTENDED to 2011.

Friends of Sri Lanka at the UN must also speak on behalf of Sri Lanka and highlight the mischief being played. This is totally unethical and totally unjustified.